It is time to review race-based affirmative action programs

WASHINGTON, August 7, 2017 — The Justice Department is reviewing race-based university admissions policies for discrimination following a complaint filed by Asian American groups against Harvard University.

The law is not clear on the subject of using a student’s race as a consideration in the college admission process. The Supreme Court ruled three times in the last 30 years that race can be a factor in admissions decisions, to be used to achieve the “compelling interest” of educational diversity. In two cases involving the University of Michigan, the Court struck down the use of a mechanical points system—5 points for being a violin virtuoso, 20 points for being black—but upheld the law school’s more individualized “holistic” reviews.

In Fisher v. University of Texas-Austin (2013), Justice Anthony Kennedy, writing for a 7-1 majority, held that universities bear “the ultimate burden of demonstrating that before turning to racial classification, workable, race-neutral alternatives do not exist.”

Princeton Professor Thomas Espenshade found that Asian students applying to selective colleges are six times less likely to be admitted than Hispanic students with the same academic qualifications and 16 times less likely than black students.

The Justice Department says that it is looking to investigate “intentional race-based discrimination in college and university admissions.” The Harvard complaint asserts that the university’s admissions process amounts to an illegal quota system, in which roughly the same percentage of African-Americans, Hispanics, whites, and Asian-Americans have been admitted year after year, despite fluctuations in application rates and qualifications.

“It falls afoul of our most basic civil rights principles, and those principles are that your race and your ethnicity should not be something to be used to harm you in life nor help you in life,” said Edward Blum, the president of Students for Fair Admissions, the organization that is suing Harvard.

In May 2015, 64 Asian-American organizations filed a complaint with the Department of Justice. The 50-page document argued that Asian applicants to Harvard “have 67% lower odds of admission than white applicants with comparable test scores.”

The groups cited Harvard’s “remarkable” stability in acceptance rates for Asians and juxtaposed it with the group’s steadily rising share of Harvard’s applicant pool. They claim this suggests that Harvard seeks “proportional representation of the various racial and ethnic groups present in Harvard’s student body.”

Sarah Isgur Flores, a Department of Justice spokesperson, said that the Obama administration had left this complaint against Harvard “unresolved” and that the civil rights division is seeking to reopen it.

For the Harvard case, initially filed in 2014, the federal court in Boston has allowed the plaintiffs to demand records from four highly competitive high schools with large numbers of Asian-American students: Stuyvesant High School in New York; Monta Vista High School in the Silicon Valley city of Cupertino; Thomas Jefferson High School for Science and Technology in Alexandria, Virginia; and the Boston Latin School.

The goal is to look at whether students with comparable qualifications have different odds of admission that could be correlated with race and how stereotypes influence the process.

A Princeton study found that students who identify as Asian need to score 140 points higher on the SAT than whites to have the same chance of admission to private colleges, a difference which has been called “the Asian tax.” The study further noted that on the SAT, Asian’s need to score 270 more than Hispanics and 450 more than blacks to have the same chance of getting in.

The lawsuit cites Harvard’s Asian-American enrollment at 18 per cent in 2013, and notes very similar numbers ranging from 14 to 18 percent in other Ivy League colleges like Brown, Columbia, Cornell, Princeton, and Yale.

In the same year, Asian-Americans made up 34.8 percent of the student body at the University of California, Los Angeles, 32.4 percent at Berkeley, and 42.5 percent at Caltech. It attributes the higher numbers to the fact that California banned racial preferences in 1996.

These data, it is argued, suggest that if Harvard were forbidden to use race as a factor in admissions, the Asian-American admissions rate would rise, and the percentage of white, black and Hispanic students would fall.

Harvard law professor Alan Dershowitz says that, “The idea of discrimination against Asians in order to make room for other minorities doesn’t seem right as a matter of principle.”

The Harvard lawsuit compares attitudes toward Asian-Americans to attitudes toward Jews at Harvard, beginning about 1920, when Jews were the “high-achieving” group. In 1918, Jews reached 20 percent of the Harvard freshman class, and the university soon proposed a quota system to lower the number of Jewish students.

That history, Dershowitz points out, concerned critics of race-based affirmative action programs that resulted in a college population reflecting a group’s share of the general population.

Evidence shows many unfair outcomes as a result of race-based admission policies. Data from the Association of American Medical Colleges indicate that race is a major factor in medical school admissions.

From 2013 to 2016, medical schools accepted 94 per cent of blacks, 83 per cent of Hispanics, 63 per cent of whites, and 53 per cent of Asians with top MCAT scores and grade-point averages of 3.6 to 3.8.

Prof. Frederick R. Lynch of Claremont McKenna College notes that “Institutional racism remains a problem … But identity politics and identity policies may have become too divisive and complicated in both theory and practice.”

The dream of a color-blind America that motivated men and women of good will during the years of struggle for equal rights has been abandoned by many who now seek a system of proportional representation in which individuals will be judged not on the basis of their own merit but as members of a particular race or ethnic group.

In the end, it is racist to judge men and women on the basis of race, whether it be to bestow rewards or inflict penalties.

Our legal tradition mandates individual rights, not group rights. This has been the goal of the civil rights movement for many years. Thurgood Marshall, arguing for the NAACP in the case of Sipuel v. Board of Regents of the University of Oklahoma (1948) declared, “Classifications and distinctions based on race or color have no moral or legal validity in our society.”

The Civil Rights Act of 1964 specifically states that no employer would be required to hire on the basis of race in order to correct some racial imbalance in the work force. What the law does forbid is discrimination on the basis of race, religion, sex, and age. In supporting this legislation, Sen. Hubert Humphrey (D-MN) declared that the act “does not require an employer to achieve any kind of racial balance in his work force by giving any kind of preferential treatment to any individual or group.”

From the very start of the affirmative action movement, there have been many eloquent black voices raised in opposition.

Professor Shelby Steele argues that,

“Good intentions can blind us to the effects they generate when implemented. In our society, affirmative action is, among other things, a testament of white good will and to black power … But after years of implementation, I think that affirmative action has shown itself to be more bad than good and that blacks … now stand to lose more from it than they gain … By making black the color of preference, these mandates have reburdened society with the very marriage of color and preference (in reverse) that we set out to eradicate.

“I think one of the most troubling effects of racial preferences for blacks is a kind of demoralization. Under affirmative action, the quality that earns us preferential treatment is an implied inferiority. The effect of preferential treatment—the lowering of normal standards to increase black representation—puts blacks at war with an expanded realm of debilitating doubt, so that doubt itself becomes an unrecognized preoccupation that undermines their ability to perform.”

A respected black scholar who opposed affirmative action programs from the beginning is Thomas Sowell, a senior fellow at the Hoover Institution at Stanford University. In his book “Preferential Policies: An International Perspective,” he points out that similar policies have been tried in many countries, with negative results:

“One of the clearly undesired and uncontrolled consequences of preferential policies has been a backlash by non-preferred groups. This backlash has ranged from campus racial incidents in the U.S. to a bloody civil war in Sri Lanka … Preferential honors for members of particular groups can easily render suspect not only those particular honors but also honors fully merited and awarded after free and open competition … To jeopardize the respect and recognition of individuals from preferred groups by rewarding ‘honors’ tainted with double standards is not only to downgrade their own achievements but also to downgrade their chances of accomplishing those achievements in the first place. After the media revealed that black students were admitted to the Harvard Medical School with lower qualifications, white patients began to refuse to be examined by such students.”

We must determine whether the American society is to be “color-blind,” as Dr. Martin Luther King and other civil rights leaders urged, or is to be based upon race and some form of proportional representation. If it is to be the latter, the latest data indicate that Hispanics are now our largest minority group, and we are setting the stage for inter-group strife and tension.

The Constitution calls simply for “equal protection” of all citizens. In any future consideration of affirmative action programs, the Supreme Court would do well to return to that standard. We have violated that standard in the past with segregation and other forms of discrimination. We are violating it today with different forms of discrimination.

The time has come to move away from all forms of divisive public policy making and treat all of our citizens as individuals, not representatives of one racial or ethnic group, or another.

Received B.A. from the College of William and Mary, J.D. from the Marshall-Wythe School of Law of the College of William and Mary, and M.A. from the University of Maryland. Served as a member of the faculties of St. Stephen's Episcopal School, Alexandria, Virginia and the University College of the University of Maryland.
The recipient of a Wall Street Journal Foundation Award, he has written for such newspapers as The Houston Press, The Washington Evening Star, The Richmond Times Dispatch, and The Cincinnati Enquirer. His column appeared for many years in Roll Call, the newspaper of Capitol Hill. His articles have appeared in The Yale Review, The Texas Quarterly, Orbis, Modern Age, The Michigan Quarterly, The Commonweal and The Christian Century. His essays have been reprinted in a number of text books for university courses in Government and Politics. For many years, his column appeared several times a week in papers such as The Washington Times, The Phoenix Gazette and the Orange County Register.
He served as a member of the staff of the U.S. Senate Internal Security Subcommittee, as Assistant to the research director of the House Republican Conference and as a consultant to members of the U.S. Congress and to the Vice President.
He is the author of five books and currently serves as Contributing Editor of The St. Croix Review, Associate Editor of The Lincoln Review and editor of Issues.